Land Use Prof Blog

Ngov on Selling Land and Religion

Eang L. Ngov (Barry) has posted Selling Land and Religion, Kansas Law Review, Vol. 61, No. 1, 2012 .  The abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. 

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers. 

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.

Matt Festa

ABA Forum of Aff. Housing and Comm. Dev. Law Student Writing Competition-2013

Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition.  The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal. 

As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition.  Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8^th. 

 

Jim K.

J.Kelly@nd.edu

Serkin on The State's Constitutional Obligations to Property Owners

Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property Owners, Brigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

An interesting and important take on some of the implications of progressive property theory.  Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.

Matt Festa

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties

Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics.  The abstract:

This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.

I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.  

Matt Festa

Hydraulic fracturing and the emergent dormant Commerce Clause

I was recently invited to write a short essay on hydraulic fracturing and the dormant Commerce Clause based upon a post on this blog in January, 2012.  The essay just came out and, since this blog was the source of the essay's origin, I thought it was only fitting to post it here, too.  Here is the abstract:

This essay reviews the increasing prominence of the dormant Commerce Clause in debates over hydraulic fracturing. In particular, the essay is framed around New Jersey Governor Chris Christie’s citing of the dormant Commerce Clause as a reason for vetoing a ban on hydraulic fracturing wastewater disposal passed by the New Jersey Legislature. The Governor’s reasoning is compared to analysis in a New Jersey Office of Legislative Services' memorandum indicating the dormant Commerce Clause would not be implicated by the proposed ban. The legal reasoning of the New Jersey dispute regarding the applicability of the dormant Commerce Clause to hydraulic fracturing is then considered in light of other scenarios around the country.

Get a free copy here!  I welcome comments.  And thanks to Jim Wedeking (Sidley Austin, ABA SEER Constitutional Law Committee) for the invitation to write the essay.

Stephen R. Miller

Follow up: Readers comments on “Two hypotheses on why there are so few new urbanism cases”

Last week I wrote a blog post stating two hypotheses for why there are so few form-based code cases.  Briefly, my hypotheses were that form-based codes are still largely optional in jurisdictions where they would be controversial; or, in the alternative, they are essentially acting as a form of pre-project approval for large developments, and thus have implicit developer approval. 

I received several great comments from all over the country, both from professors and practicing attorneys, each largely confirming my hypotheses.  That was re-assuring!  I wanted, in particular, to acknowledge the helpful comments of Nick Morantz, a Ph.D. candidate at MIT's planning school, who has studied the issue and wrote the following nice summary to me:

Based on my observations, form based codes seem to fall into four broad categories: (1) advisory documents; (2) components of design guidelines for expedited permitting review; (3) components of CC&Rs for homeowners associations; and (4) binding public law. Categories 1 and 2 correspond to your hypotheses. Category 4 seems vanishingly small.

Mr. Morantz, who has studied form-based codes in depth, recommended Blaesser's Discretionary Land Use Controls as the best compilation of form-based code cases.  He has also written an interesting book chapter I’d recommend, “The Business of Codes:  Urban Design Regulation in an Entrepreneurial Society,” along with MIT planning professor and planning department head Eran Ben-Joseph in the book Urban Design in the Real Estate Development Process. 

Thanks to Mr. Morantz, and all the others, who wrote in on this interesting topic.

Stephen R. Miller

Legal Aspects of Hydraulic Fracturing: 2013 Idaho Law Review Symposium

I am excited to announce that on March 29, 2013, the Idaho Law Review will be hosting its annual symposium, which this year is Legal Aspects of Hydraulic Fracturing.  As the faculty adviser for the event, I am so proud of our students for putting together such an excellent program that will include both top professors and top practitioners from around the country. 

Even better, we will be live streaming the event so those of you who can't make it to Boise can join us from wherever you might be (office, home, cafe, mountaintop). 

Moreover, we will also offer 5 streaming CLE credits, which should be attractive to practitioners (outside of Idaho, reciprocal credits must be authenticated with attorney's state bar by submitting materials we will provide).

Come join us in Boise if you can, and if you can't make it to Boise, join us online!  Feel free to contact me if you have any questions about the event.

Stephen R. Miller

 

 Legal Aspects of Hydraulic Fracturing:  An Idaho Law Review Symposium

CLE Credits and Price: 5 CLE credits. Price $145 CLE, $45 non-CLE (includes breakfast and lunch). Limited seating is available. Register online. Registrations will be processed in the order received.

Registration and Continental Breakfast (8:00 – 8:30)

Introductions and Welcome (8:30 – 8:45)

Science and Technology of Hydraulic Fracturing (8:45-9:45)
Moderator: Anastasia Telesetsky (Idaho)
John Imse (NORWEST)
Virginia Gillerman (Idaho Geological Survey)

Break (9:45-10:00)

Regulation of Hydraulic Fracturing’s Environmental Effects (10:00 – 12:15)

Water. (10:00 – 11:00)
Moderator: Barbara Cosens (Idaho)
Joseph Dellapenna (Villanova)
Robin Kundis Craig (Utah)

Air & Land. (11:00 – 12:00)
Moderator: Jerrold Long (Idaho)
Jim Wedeking (Sidley Austin LLP)
Carlos Romo (Baker Botts LLP)

Morning Wrap-Up Panel Discussion (12:00 – 12:15)

Lunch Break (12:15-1:30)

State & Local Government Regulation Hydraulic Fracturing (1:30 – 2:30)
Moderator: Stephen R. Miller (Idaho)
Uma Outka (Kansas)
Michael Christian (Marcus Christian Hardee & Davies LLP)

Two Hydraulic Fracturing Hot Topics: Trespass & Trade Secrets (2:30 – 3:30)
Moderator: TBA
Chris Kulander (Texas Tech)
Keith Hall (Louisiana State)

Break (3:30 – 3:45)

Does Hydraulic Fracturing Have a Role in a Clean Energy Future? (3:45 – 4:45)
Moderator: Dale D. Goble (Idaho)
Joshua Fershee (West Virginia)
Patrick Parenteau (Vermont)

Concluding remarks (4:45 – 5:00)

Reception (5:00 – 6:00)

 

Anderson, MacDonald, Bluthenthal, & Ashwood on an Empirical Study of Reducing Crime with Zoning

James M. Anderson (RAND Corp.), John MacDonald (Penn--Criminology), Ricky Bluthenthal (Southern Cal--Medicine), and J. Scott Ashwood (RAND Corp.)  have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles, 161 University of Pennsylvania Law Review 699 (2013).  The abstract:

The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.

Looks like a fascinating interdisciplinary collaboration.

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy.  Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago).  Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.
Registration is suggested by Friday, February 15.

To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
umclawjesl@missouri.edu

More Information on 2013 JESL Symposium

Matt Festa

Dispute over Yard Sign Destroys Fairfax HOA

A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election.  After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area.  From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.

Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.

Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.

“It destroyed our community,” Maria Farran said.

The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim.  It made some new law:

In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants. 

 You can read the whole article for a great description of the legal issues and the story.  As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country.  And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.

Thanks to Helen Jenkins for the pointer.

Matt Festa

Perpetual Conservation Easements Conference at Utah

This Friday afternoon the University of Utah College of Law will host a conference on perpetual conservation easements, organized by Prof. Nancy McLaughlin, whose work on the subject we have featured here on the blog.  [Note--Jessie posted this previously, but here is an update:] If you can't book a last-minute ticket to Salt Lake City, the good news is--you can watch it live on the Internet!!  Here's the info:

Two hypotheses on why there are so few form-based code cases

I enjoyed reading Jonathan Zasloff’s post on new urbanism and also Matt Festa’s response.  It turns out that, this semester, my clinic is advising a jurisdiction here in Idaho that is considering implementation of form-based codes.  My students and I have been digging under every rock to try to find cases involving form-based codes, but have found very little.  Reading that other professors have unearthed very little is re-assuring!  In this research, however, I have developed two hypotheses for why I believe there are so few form-based code cases (note:  Zasloff said "new urbanism," but I use the term "form-based codes" because I believe it is broader, and inclusive of other movements that I find more powerful, such as those of the architect Christopher Alexander).

First, I’d posit that jurisdictions where it is believed that form-based codes would be controversial have opted to make them optional, instead offering them as an alternative to traditional Euclidean zoning schemes for the adventurous developer.  If something is simply an option, it is very unlikely to lead to appellate litigation that would result in a reported case.  For an example, see Dallas’ optional form-based codes.  That does not mean there are not potential legal issues with form-based codes; rather, it means there isn’t enough skin in the game for it to matter yet.

Second, another sub-set of form-based codes are emerging for larger projects that have the implicit approval of the developer in the codes' design.  A great example of this is the Treasure Island project in San Francisco Bay.  The single (yes, massive) development project is guided by an enormous 362-page form-based code document called Design for Development, but the San Francisco Planning Code, the city's Euclidean zoning bible, has just a few pages on what this project will entail and instead mostly incorporates the Design for Development standards.  Because the developers are essentially the ones creating these form-based codes as a way of getting a type of “pre-project approval,” as I see it, they obviously are not going to be suing over form-based codes they helped to draft.

I’d be curious to hear whether these hypotheses ring true to any others that have researched this area.

In the research conducted by our clinic, it appears there are also about five decent law review articles (in my humble opinion) hypothetically analyzing legal problems that may arise from form-based zoning.  If anyone wants my picks, I’m happy to send them along.

Stephen R. Miller

Zasloff: Has New Urbanism Killed Land Use Law?

Jonathan Zasloff (UCLA) has a piece on Legal Planet: The Environmental Law and Policy Blog (Berkeley/UCLA) called Has New Urbanism Killed Land Use Law?  

My Land Use casebook, like most of them, mentions New Urbanist zoning and planning techniques, but does not dwell on them. In order to teach New Urbanist concepts such as Form-Based Codes, SmartCode, and the Transect, I had to develop my own materials, as well as shamelessly stealing a couple of Powerpoint presentations from a friend who works at Smart Growth America.

What’s the cause of this gap? Is it because land use professors have a thing about Euclidean zoning?

I doubt it. A quick check in the Westlaw “ALLCASES” database yields only one result for the phrase “Form-Based Code” and none of the results for “transect” has anything to do with the New Urbanist land use concept. That means that it is very difficult actually to find cases that reflect aspects of New Urbanism.

One can understand that in several ways, I suppose. You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning. For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with. . . .

Now let me quibble with this a little bit: in Houston--the Unzoned City--we supposedly don't regulate uses either.  But it seems we do nothing here but apply for, and fight over, variances, nonconforming uses, and special exceptions, for everything from lot sizes and setbacks to sign code and HP rules.  It seems to me that people are going to want incremental exceptions for building form or site requirements at least as commonly, if not more so, than for use designations.

But overall it's a good point.  Zasloff concludes that even if we do move to form based codes, we'll still probably need to keep a little zoning around:

[W]hile New Urbanism coding can serve as a replacement for a lot of Euclideanism, it cannot eliminate it entirely — not because we are addicted to Euclidean forms, and not because we are dumb, but because lots of the world is uncertain, and cities will have to grapple with that.

I also find that New Urbanism is hard to teach in a doctrinal land use law class.  Zasloff concludes: 

If this is right, then land use casebooks will still emphasize Euclidean zoning, because that’s where the disputes are and necessarily will be.

A problem set with form-based codes would be nice, though. Just sayin’.

I know some recent land use casebooks have moved to a problem-based approach, and some of our colleagues have created their own materials for teaching New Urbanism.  Students find this stuff interesting, so we should all work towards developing these resources for teaching.

Matt Festa

Movable Conservation Easement Not Perpetual

As regular readers already know, I am pretty skeptical of tax deductions for golf course conservation easements. The bold landowners in Belk v. CIR, 140 T.C. No. 1 (Jan. 28, 2013) asserted that the conservation easement burdening a golf course should be valued at over $10 million. The golf course was part of a residential suburban development. I am sure many of you have seen these places where the golf course is part of the attraction for people to buy the homes in the development both because of the attraction of being able to play golf but because of the open space the golf course provides. The valuation of such golf courses is complicated because it often fails to account for the fact that the presence of the golf course increases the value of the surrounding homes. In this case, the Belk conservation easement also had an unusual provision. It stated that the landowners could change the boundaries of the conservation easement with agreement of the conservation easement holder. Here is the exact language from the conservation easement:

3. Owner may substitute an area of land owned by Owner which is contiguous to the Conservation Area for an equal or lesser area of land comprising a portion of the Conservation Area, provided that:

        a.  In the opinion of Trust:

(1) the substitute property is of the same or better ecological stability as that found in the portion of the Conservation Area to be substituted;

(2) the substitution shall have no adverse affect on the conservation purposes of the Conservation Easement or on any of the significant environmental features of the Conservation Area described in the Baseline documentation;

(3) the portion of the Conservation Area to be substituted is selected, constructed and managed so as to have no adverse impact on the Conservation Area as a whole;

(4) the fair market value of Trust's conservation easement interest in the substituted property, when subject to this Conservation Easement, is at least equal to or greater than the fair market value of the Conservation Easement portion of the Conservation Area to be substituted; and

(5) Owner has submitted to Trust sufficient documentation describing the proposed substitution and how such substitution meets the criteria set forth in subsections (1)-(4) above of this Section B.3.a. of this Article III.

The IRS disallowed the deduction because a moveable conservation easement is not perpetual as required by the statute allowing charitable deductions for conservation easements. The Tax Court agreed. This view of conservation easements places a primacy on the location preserved over the features preserved (or conservation value of the restriction). In some ways, I am happy to see scrutiny of these highly appraised golf course conservation easements, but regret that the IRS does not recognize the potential value of a movable conservation easement. With climate change and shifting land use patterns, there are multiple reasons for wanting more flexible arrangements that the typical permanent conservation easement. This law doesn’t prohibit it of course (although it might signal some trouble for arrangements of that type in states like California that require conservation easements to be perpetual), but does indicate movable conservation easements won’t be able to garner tax deductions that have induced many landowners and developers to create the restrictions. For two other summaries of this case, see Nancy McLaughlin’s take and Jonathan Bockian’s. For more thoughts on movable conservation easements, check out this article by Bill Weeks.

Jessica Owley

Great NYC fellowship opportunity for law grads and future housers

The NYC Department of Housing Preservation and Development and the NYC Housing Development Corporation are offering a two-year fellowship for graduating law students to begin in Fall, 2013.  The program description sounds like an amazing opportunity for someone interested in land use issues, and housing in particular.  For "housers" in the making, here is the program description:

The HPD-HDC Housing Fellowship is a two-year program, and individuals who are selected to join the program make a two year commitment.  Each class of Fellows is chosen following a national search.  Fells must be recent graduates of schools of public policy, urban studies, planning, management, law or a related field.  In the first year, Housing Fellows rotate through three four-month placements, learning firsthand about HPD's efforts to revitalize New York City's neighborhoods through financing, including tax-exempt and taxable bonds; new construction; rehabilitation; code enforcement; housing litigation; outreach and loans to private owners.  In the second year, Fellows expand their time in a specific program area to encourage further growth by choosing two half-year or one full-year placement.  In addition to their work experiences, Fellows participate in site visits to developments across the City; meet with housing leaders in government, business, nonprofit organizations and academia; accompany HPD housing inspectors investigating complaints in the field; and participate in conferences, among other activities.  At the end of the two year period, Fellows either secure positions within HPD or HDC or move on to continue working in the field at other agencies or organizations.  Please note that neight HPD nor HDC can promise permanent employement at the end of the program.

This blog site does not permit attachments, but I have attached the application to my other blog site here.  Applications are due March 1, 2013.  I see a future Catherine Bauer Wurster being made on the banks of the Hudson through this program!  Encourage students to apply!

Stephen R. Miller

Summer Environmental Law WIP Event

The University of Washington Law School is going to be hosting its second annual Yound Environmental Law Scholars Workshop in July and I thought it might be of interest to some of our readers. As many of you know, I really struggle with have given  up on trying  to articulate the line between environmental law and land use.  The event will be July 10-12 ay UW in Seattle and they have already lined up an impressive array of senior scholars to read and comment on drafts.

Here’s their description of the event:

This collegial two-day workshop features discussion of works-in-progress by ten early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows.  We welcome submissions from the broad fields of environmental, natural resources, and energy law.

Participating junior scholars will be asked to submit an unpublished work-in-progress one month before the workshop.  Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary.  At the workshop, each paper will receive an hour of discussion: a brief presentation by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group.  The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.

    Meals will be provided. Travel and lodging costs will be the responsibility of the participants. To apply, send a cover letter, an abstract of no more than 500 words, and a C.V. to Todd Wildermuth at toddw2@uw.edu by March 1, 2013.

 

Jessica Owley

Fellow position: Georgetown University Law Center - Housing and Community Development Clinic

Some of our readers may be interested in applying for this position...

2 year fellowship at Georgetown University Law Center leading to an  LL.M. in advocacy; the stipend for 2013-2014 is $53,500 (taxable) plus health and dental benefits.  The Fellow will supervise 2nd and 3rd year law students working on affordable housing development issues, development of community facilities and small business issues.  The Fellow will also assist in the teaching of a weekly seminar.  Required: minimum 2 yrs. legal experience with background in transactional housing and/or business matters.  Spanish language ability is a plus.  Admission, or ability to waive into the DC Bar is required.   Send letter of interest and resume by 4/1/13 to Professor Michael Diamond, Georgetown University Law Center, 600 New Jersey Avenue NW, Suite 102, Washington., DC 20001 or by email to diamondm@law.georgetown.edu.  Applications will be reviewed as received. 

As a director of a C/ED clinic myself, I think this sounds like a great way for a budding academic to get a foot in the door in a really fun and important area of law.

Stephen R. Miller

Ridesharing / Hitchhiking 2.0: Yes, there's an app for that

Last week I wrote a somewhat quirky post about hitchhiking and ridesharing.  It appears this may be becoming a serious business.  Today I read an article about how a number of apps are now available to help people arrange rides and eliminate the need to "thumb it."  The interesting issue is that they are being challenged in court as potentially violative of taxi regulations, as some of the apps charge a percentage of "donations" that passengers give to drivers for a ride.  From the article:

Uber [one of the new apps] allows passengers to use their smartphones to summon luxury town cars and other vehicles driven by professional drivers. Customer credit cards are charged fares based on time and distance.
 
Lyft and SideCar describe themselves as community "ridesharing platforms" that connect riders and drivers, who use their own vehicles. After each ride, passengers are asked for a voluntary donation based on what others paid for similar trips. The companies take a 20 percent cut.
 
"We started Lyft to create a system for matching up people who need a ride with people who can offer a ride," said Logan Green, co-founder of San Francisco-based Zimride, which operates Lyft.
 
But taxi operators say the new ride services are little more than illegal cabs that don't have permits, pay city fees or follow regulations. The upstarts are also steering business away from cab drivers, making it harder to earn a living.
 
"It makes for an uneven playing field," said Barry Korengold, who heads the San Francisco Cab Drivers Association. "We're not trying to stifle technology. We're saying do it in the legal way."

It's a great story of how technology can revolutionize an age-old tradition, but also run afoul of norms--even the "new property" rights--established by regulating an industry.  These apps may not only permit people to get across town quickly, or find a nearby neighbor who shares a similar commute pattern, but also require us to reconsider how we regulate taxis and other "traditional" forms of ridesharing that are more centralized, and often less responsive, to decentralized demand.  Could the traditional, regulated taxi industry be the next victim of a mobile phone app?

Stephen R. Miller

What To Do About Bad Conservation Easement Appraisals...

Looks like the federal governement is continuing its scrutiny of conservation easements. This time they are looking at appraisers who place inflated values on conservation easments (particularly an issue in the historic preservation realm). Conservation Easement guru Nancy McLaughlin has posted a detailed description over at the Nonprofit Law Prof Blog. I wonder of course, where all these conservation easements are now.

Jessie Owley